IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-41547

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ANDRES ABRAHAM HERNANDEZ-VASQUEZ,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:16-CR-439-1

Before KING, ELROD, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Andres Abraham Hernandez-Vasquez pleaded guilty to illegal reentry, 

and the district court sentenced him to 36 months of imprisonment and three 

years of supervised release. The sentence was an upward variance from a 

guidelines range of 15 to 21 months. Hernandez-Vasquez raises two issues on 

appeal.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 26, 2017

Lyle W. Cayce

Clerk

 Case: 16-41547 Document: 00514212409 Page: 1 Date Filed: 10/26/2017
No. 16-41547

2

First, Hernandez-Vasquez argues that the district court imposed a 

substantively unreasonable sentence because his sentence represents a clear 

error of judgment in balancing the 18 U.S.C § 3553(a) sentencing factors. He 

contends that the district court gave too much weight to deterrence and public 

protection to be justified by his past criminal conduct and that the district court 

should have given more weight to these considerations: (1) this is his first 

illegal-reentry offense, (2) his prior New York conviction of rape in the second 

degree was non-violent, and (3) since his release from state custody in 2009, he 

has allegedly committed no similar offense.

The instant record reflects that the district court heard HernandezVasquez’s arguments and that it considered the § 3553(a) factors. It ultimately 

determined the above-guidelines sentence was warranted in light of the 

sentencing factors. This was not an abuse of discretion. See Gall v. United 

States, 552 U.S. 38, 51 (2007). “Though [Hernandez-Vasquez] may disagree 

with how the district court balanced the § 3553(a) factors, [his] argument that 

these factors should have been weighed differently is not a sufficient ground 

for reversal.” United States v. Malone, 828 F.3d 331, 342 (5th Cir.), cert. 

denied, 137 S. Ct. 526 (2016).

Second, Hernandez-Vasquez argues that his prior New York conviction 

of rape in the second degree was not an aggravated felony and that the district 

court therefore erred when it sentenced him under 8 U.S.C. § 1326(b)(2). He 

concedes that he did not raise this argument in the district court; we review 

this issue for plain error only. See United States v. Neal, 578 F.3d 270, 272 

(5th Cir. 2009).

An “aggravated felony” is defined in 8 U.S.C. § 1101(a)(43) by a long list 

of offenses that includes “sexual abuse of a minor.” § 1101(a)(43)(A). 

Hernandez-Vasquez argues that his New York conviction does not meet the 

 Case: 16-41547 Document: 00514212409 Page: 2 Date Filed: 10/26/2017
No. 16-41547

3

generic definition of sexual abuse of a minor because the generic definition 

requires at least a four-year age difference between offender and victim and 

because consensual sex does not qualify as generic abuse.

Hernandez-Vasquez is correct that his arguments are foreclosed. See

United States v. Cabecera Rodriguez, 711 F.3d 541, 559-60, 562 n.28 (5th Cir. 

2013) (en banc) (rejecting four-year age differential requirement); United 

States v. Elizondo-Hernandez, 755 F.3d 779, 781-82 (5th Cir. 2014) (per 

curiam) (holding that indecency with a child by contact was necessarily 

“abusive”). Although Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1572-73 

(2017), held that “in the context of statutory rape offenses focused solely on the 

age of the participants, the generic federal definition of ‘sexual abuse of a 

minor’ under § 1101(a)(43)(A) requires the age of the victim to be less than 16,” 

it did not decide “whether the generic crime of sexual abuse of a minor under 

8 U.S.C. § 1101(a)(43)(A) includes an additional element of” a minimum age 

differential. Hernandez-Vasquez has not demonstrated that the district court 

plainly erred by sentencing him under § 1326(b)(2).

AFFIRMED. 

 Case: 16-41547 Document: 00514212409 Page: 3 Date Filed: 10/26/2017